Opinion
March 23, 1971
Order, Supreme Court, New York County, entered on December 10, 1970, unanimously reversed, on the law and the facts, and defendant's motion to compel disclosure granted to the extent set forth in the two notices in respect thereof, dated September 3, 1970, served by defendant upon plaintiffs. Appellant shall recover of respondents $30 costs and disbursements of this appeal. This action is based upon harm alleged to have come to the infant plaintiff as the result of administration to him of a certain drug manufactured by defendant. Neither the institution where the drug was given nor the doctors or others concerned in its administration have been made a party to the suit, though plaintiffs' bill of particulars reveals their identity and, in addition, gives information as to the names of places where the infant plaintiff was thereafter confined or treated, as well as other pertinent details. On September 3, 1970, defendant served two "notices for discovery and inspection" (CPLR 3120), seeking to discover records relating to what was set forth in the bill, as well as other pertinent details. When the notices were ignored, defendant moved for the same relief (CPLR 3124). Plaintiffs objected, claiming that the notices were premature, and that the records sought were neither identified nor shown to be material or necessary. Special Term sustained plaintiffs' position, and we reverse. To begin with, plaintiffs waited too long to assert opposition to the demand for disclosure (CPLR 3122; Coffee v. Ohrbachs, Inc., 22 A.D.2d 317). Further, merely to compare the notices with the bill of particulars is to resolve all doubt as to materiality or relevancy, and that which is sought is specifically identified, and may be provided without placing an undue burden on plaintiffs.
Concur — Stevens, P.J., Capozzoli, Markewich, McNally and Steuer, JJ.